Bar Issue Papers

In recent years, legal and legislative challenges to unified bar operations have become common. Florida has faced challenges in court, and bills are being entered regularly in the legislature to alter the current regulatory authority of the Supreme Court of Florida. A "unified" bar is a mandatory membership bar, i.e., an organization established by court rule or legislation which lawyers must join in order to practice law in that jurisdiction. Such entities were first referred to as "integrated" bars to distinguish them from voluntary membership organizations. Later, to avoid confusion with the concept of racial integration, the term "unified" became more commonly used, although the term "integrated" is still used in some court decisions.

II. The Florida Bar PositionThe Florida Bar opposes amendments to the Florida Constitution which would alter the authority of the Supreme Court of Florida to regulate the admission of persons to the practice of law or discipline persons admitted. (Adopted February 1995 and subsequently sunsetted.)

III. BackgroundProfile -- The largest unified bar is the State Bar of California with 190,386 active members and $85 million in annual expenditures. The smallest unified bar is the Virgin Islands Bar Association with 997 members and $96,000 in annual expenditures. The Florida Bar dues for 74,000 members is $265 annually with expenditures of $28.8 million for the organization.History -- Lawyers in the United States first organized in voluntary bar associations in cities and counties. Today, with the exception of North Carolina's district bars, membership in all local bar associations remains voluntary. The earliest state bar associations were also voluntary. Eventually, to identify and better regulate all lawyers within a particular jurisdiction, the unified bar concept took hold. The unification movement began in 1921 when the State Bar Association of North Dakota was unified. Six bars were unified in the 1920s; 14 in the 1930s; four in the 1940s; four in the 1950s; three in the 1960s; three in the 1970s; and one in the 1980s. Seventeen bars were unified by state Supreme Court rule; 10 bars were unified by state legislative directive; and seven bars were unified by both court rules and legislative directive. The Florida Bar was founded in 1907 as a voluntary bar known as the Florida State Bar Association. The bar was unified by court rule in 1950 and from thence known as The Florida Bar.At least 37 jurisdictions are unified: AL, AK, AZ, CA, DC, FL, GA, GUAM, HA, ID, KY, LA, MI, MS, MO, MT, NE, NV, NH, NM, NMI, NC, ND, OK, OR, PR, RI, SC, SD, TX, UT, VA, VIR. IS., WA, WV, WI, and WY. Some 18 jurisdictions remain voluntary: AR, CO, CT, DE, IL, IN, IA, KS, ME, MD, MA, MN, NJ, NY, OH, PA, TN and VT. Core Functions -- Unified bars differ widely in their interpretation of core functions. Some unified bars have clearly defined and very specific guidelines; other bars exercise broad judgment in determining purposes and programs. Similar mandated core functions among unified bars are as follows: discipline (25 unified bars); mandatory continuing legal education (33 unified bars); a client protection fund (24 unified bars); fee dispute arbitration and lawyer substance abuse (11 unified bars); and admission (nine unified bars). The Florida Bar considers mandatory core functions to be discipline, client protection fund, lawyer substance abuse and mandatory continuing legal education. A voluntary fee arbitration program is also in place. Dues Approval Process -- Some 29 unified bars involve their governing body prior to an increase in mandatory dues; 19 unified bars must have Court involvement while only 12 unified bars involve their general membership. Entities having final approval for an increase in mandatory dues are: the state Supreme Court in 14 unified jurisdictions; the bar's general membership in seven jurisdictions; the legislature in seven unified jurisdictions; the bar's governing body in five unified jurisdictions; and the bar's representative assembly in one unified jurisdiction. The Florida Bar's Board of Governors approves the budget after publication to members, then submits the budget to The Supreme Court of Florida for final approval.Relief Mechanisms for Dissenting Members -- Twenty­four unified bars have relief mechanisms to meet the U.S. Supreme Court's criteria: four unified bars offer a deduction option (permitting members to reduce their annual dues by a set dollar amount prior to remittance); 16 unified bars offer a refund option (requiring members to challenge, in writing, bar activity to which they object); and three unified bars offer a diversion option (permitting members to authorize a set dollar amount of their annual dues to be remitted to another bar­related entity, such as the bar foundation). The Florida Bar's budget process is open and participatory. Initial and successive budget drafts are published in member publications for pertinent comment, and all meetings of the Budget Committee are duly noticed for membership participation. Bar rules are provided to every member via a personal directory edition of the Journal, which also features the bar's final budget and a detailed explanation of all organizational programming.The Florida Bar's member dissent procedure for legislative matters is a pure escrow/rebate type as opposed to an advance­reduction scheme or other variation. Members may challenge legislative activities that are funded by mandatory dues within 45 days of official notification of those activities. The bar's governing board has an additional 45 days to review all challenges, and to either authorize a rebate or refer the matter to an independent arbitration panel.The Florida Bar does not intentionally budget any funds for "nonchargeable" uses because the bar is not permitted to engage in such activities. The bar's governing board, oversight committees and legal counsel also monitor potentially "challengeable" activities.Other Considerations -- A repealer statute nullifies or voids an entity; a sunset statute requires an entity to periodically justify its existence. Five unified jurisdictions are subject to sunset process or repealer statute: Alabama, Arkansas, Mississippi, Oregon and Texas. While not subject to a repealer or sunset statute, the State Bar of California is subject to funding approval by the state legislature. Six unified bars have discussed conversion from mandatory to voluntary status -- all but one concluded that the unified structure was essential. The State Bar of California held a plebiscite, conducted by Price Waterhouse LLP between May 24 and June 17, 1996 to determine lawyer's opinion regarding keeping or abolishing the mandatory bar. Some 60,885 of the 120,000 lawyers voted, with 65 percent favoring mandatory and 35 percent voting to abolish the state's unified bar. The state bars that discussed and concluded unified bar status essential: Michigan, Mississippi, North Dakota, Washington, and Wisconsin. On October 11, 1997, Gov. Pete Wilson of California vetoed legislation authorizing the State Bar of California's 1998 fee bill, which would have authorized the State Bar to collect dues for the next two years. In November, newly revised 1998 fee statements were mailed to Bar members, the second time in 12 years the membership has been called upon to pay dues voluntarily. The last time voluntary dues were requested was in 1985 when the legislature failed to pass a fee bill before the close of the session. Mandated fees, which are set by statute and not affected by the governor's veto, total $77. Members are being asked to submit their voluntary payments with the mandated fees. After the 1996 plebiscite, membership fees were reduced by $20 per year.The North Dakota legislature eliminated the disciplinary budget from the Supreme Court budget, leaving responsibility for disciplinary funding to the State Bar Association of North Dakota. The bar plans to phase in a dues increase over the next 3 to 4 years in order to fund the disciplinary system The Alaska Bar Association recently added a bylaw amendment establishing a relief mechanism for those members who object to the Bar's expenditures of mandatory dues.In 2001 the Florida Legislature considered legislation that would have changed the State Constitution to effectively split the regulation of lawyers between the Legislative and Judicial branches of government and eliminated the Bar's authority as a unified bar. The measure died in committee.

NOTE: For more information regarding the regulation of lawyers by the Supreme Court of Florida, see background paper "Judicial Regulation of Lawyers." That background paper contains relevant history, court decisions, and background specific to Florida's lawyers.

Prepared by The Florida Bar Department of Public Information and Bar Services with assistance from material provided by the American Bar Association.